Iulo v. Staten Island Univ. Hosp.

• Decision Date: 01 May 2013
• Parties: Anthony Joseph IULO, etc., appellant, v. STATEN ISLAND UNIVERSITY HOSPITAL, et al., defendants, Warchol, etc., respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 696
964 N.Y.S.2d 565
2013 N.Y. Slip Op. 03063

Anthony Joseph IULO, etc., appellant,
v.
STATEN ISLAND UNIVERSITY HOSPITAL, et al., defendants,
Warchol, etc., respondent.

Supreme Court, Appellate Division, Second Department, New York.

May 1, 2013.

[964 N.Y.S.2d 566]

Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), for appellant.

Dopf, P.C., New York, N.Y. (Martin B. Adams and Michael Rosenblum of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

[106 A.D.3d 696]In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated October 20, 2011, as granted that branch of the motion of the defendant Andrew Warchol, sued herein as “Dr. Warchol, M.D.,” which was for summary judgment dismissing the complaint insofar as asserted against him, and (2) from a judgment of the same court entered December 16, 2011, which, upon the order, in effect, severed the action against the defendant Andrew Warchol, sued herein as “Dr. Warchol, M.D.,” and is in favor of that defendant and against the plaintiff, dismissing the complaint insofar as asserted against that defendant.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, that branch of the motion of the defendant Andrew Warchol,

[964 N.Y.S.2d 567]

sued herein as “Dr. Warchol, M.D.,” which was for summary judgment dismissing the complaint insofar as asserted against him is denied, the complaint insofar as asserted against that defendant is reinstated, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from so much of the intermediate order as granted that branch of the motion of the defendant Andrew Warchol, sued herein as “Dr. Warchol, M.D.,” which was for summary judgment dismissing the complaint insofar as asserted against him must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on [106 A.D.3d 697]the appeal from that portion of the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501 [a][1] ).

The plaintiff alleged, inter alia, that the defendant Andrew Warchol, sued herein as “Dr. Warchol, M.D.” (hereinafter Warchol), departed from accepted practice by, among other things, failing to...